Decision Date: 12/12/95 Archive Date:
12/12/95
DOCKET NO. 94-00 132 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to special monthly pension based on the need for
regular aid and attendance or based on being housebound.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Carole R. Kammel
INTRODUCTION
The veteran had active duty from November 1953 to November
1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1993 rating decision of the
Department of Veteran Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana, which denied entitlement to special
monthly pension based on the need for regular aid and
attendance or based on being housebound. In a written
statement dated in March 1994, the veteran's representative
contends that the veteran has functional loss of the right
arm and hand as well as nerve and disc involvement as a
result of scoliosis of the thoracic spine secondary to a
motor vehicle accident. These issues have not been
developed for appellate review and are referred back to the
RO for proper development
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he meets the criteria for
special monthly pension on account of the need for the aid
and attendance of another person or in the alternative that
he is housebound. He also maintains that his right hand is
paralyzed from his cerebrovascular accident and that he has
hypertension and cardiovascular heart disease that should be
rated separately. The veteran maintains that he has a spine
disability, diabetes, hypertension, heart disease and
weakness of the right hand and upper extremity that are
separately ratable at 60 percent thereby entitling him to
benefits at the housebound rate. His representative
contends that the recent VA examination was inadequate and
that the case should be remanded for further development of
the medical evidence.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claim of entitlement to special monthly
pension based on the need for regular aid and attendance or
on the account of being housebound.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The appellant's disabilities include: cerebrovascular
accident with right upper extremity paresis, evaluated as
100 percent disabling ; non-insulin dependent diabetes
mellitus, evaluated as 10 percent disabling; and scoliosis
of the dorsal spine; sinusitis and residuals of a fractured
jaw, each evaluated as noncompensably disabling.
3. The appellant has not demonstrated that he is a patient
in a nursing home, helpless or blind, or so nearly helpless
or blind as to need the regular aid and attendance of
another person, nor that he requires regular aid and
attendance for his daily functions or for protection from
the hazards of daily life.
4. The appellant has a single permanent disability rated as
100 percent disabling; however, he is not confined to his
dwelling or immediate premises by his permanent disability,
nor does he have an additional disability or disabilities
which are independently ratable as at least 60 percent
disabling.
CONCLUSION OF LAW
The criteria for special monthly pension based on the need
for the regular aid and attendance of another person or on
account of being housebound have not been met. 38 U.S.C.A.
§§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran's
claim is plausible and thus well grounded within the meaning
of 38 U.S.C.A. § 5107 (a). The Board is satisfied that all
relevant evidence has been obtained with respect to the
claim and that no further assistance to the veteran is
required in order to comply with the duty to assist mandated
by statute. Despite the representative's contentions that
the examination in August 1993 was inadequate, the Board
observes that the examination contained detailed objective
findings and diagnoses that were entirely adequate to
adjudicate the issue on appeal. Indeed, the examination was
tailored for exactly that purpose, and a remand to develop
the medical evidence further when there are no clinical
findings to buttress the request would serve no useful
purpose.
The basic criteria governing the special monthly pension
benefits sought on this appeal are as follows:
I. Aid and Attendance
Where an otherwise eligible veteran is in need of regular
aid and attendance, an increased rate of pension is payable.
38 U.S.C.A. § 1521(d) (West 1991). The law and regulations
provide that, for pension purposes, a person shall be
considered to be in need of regular aid and attendance if
such person is (1) a patient in a nursing home because of
mental or physical incapacity; or (2) helpless or blind, or
so nearly helpless or blind, as to need the regular aid and
attendance of another person. 38 U.S.C.A. § 1502(b) (West
1991); 38 C.F.R. § 3.351 (1994).
Determinations as to the need for aid and attendance must be
based on actual requirements of personal assistance from
others. In making such determinations, consideration is
given to such conditions as: inability of the claimant to
dress or undress himself or to keep himself ordinarily clean
and presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliances which by reason of the
particular disability cannot be done without aid; inability
of the claimant to feed himself through loss of coordination
of the upper extremities or through extreme weakness;
inability to attend to the wants of nature; or incapacity,
physical or mental, which requires care or assistance on a
regular basis to protect the claimant from hazards or
dangers incident to his daily environment. "Bedridden" will
be a proper basis for the determination and is defined as
that condition which, through its essential character,
actually requires that the claimant remain in bed. It is
not required that all of the disabling conditions enumerated
above be found to exist before a favorable rating may be
made. The particular personal functions which the claimant
is unable to perform should be considered in connection with
his condition as a whole. It is only necessary that the
evidence establish that the claimant is so helpless as to
need regular aid and attendance, not that there be a
constant need. 38 C.F.R. § 3.352(a) (1994).
An examination for aid and attendance was conducted by VA in
August 1993. It was noted that the veteran drove himself to
the examination. On examination, the veteran complained of
shortness of breath on heavy exertion and of palpitations
off and on. The veteran's gait, posture and nutrition were
normal. He was not blind but wore reading glasses. His
blood pressure was 118/76. The veteran had normal strength
and coordination. He had the ability to bathe, shave, feed
and dress himself. He was able to attend to the needs of
nature by himself. The examiner noted that the veteran had
a slight weakness of the right hand, forearm and upper arm
due to an old cerebrovascular accident with residual right
hand paresis. The veteran's left upper extremity was within
normal range, and his lower extremities were normal. There
were no deficits of weight bearing, balance or propulsion.
The examiner noted that the veteran had scoliosis of the
thoracic spine, secondary to a motor vehicle accident since
1980, but there were no complaints or findings showing any
significant dorsal spine disability. There was simply no
indication of nerve or disc involvement as a result of the
scoliosis, nor any showing of any substantial functional
loss as a result of the scoliosis. The record shows that
the veteran is able to walk one mile without the assistance
of another person and does not need any mechanical aid for
ambulation. It was reported that the veteran walked three
times a week, exercised daily and visited his friends
occasionally. Finally, it was noted that the veteran was
able to travel beyond the premises of his home three or four
times a day and that he was able to perform selfcare. He
had no dizziness, loss of memory or poor balance affecting
his ability to ambulate. The diagnoses were hypertension,
noninsulin dependent diabetes mellitus, old cerebrovascular
accident with residual weakness of the right upper extremity
especially his right hand, and scoliosis of the dorsal
spine. Paroxysmal atrial tachycardia was noted by history
only.
This examination clearly demonstrates that the veteran is
able to perform the activities of life unassisted. The
appellant was not shown to be a patient in a nursing home,
helpless or blind, or so nearly helpless or blind as to need
the regular aid and attendance of another person.
Therefore, the veteran is not entitled to special monthly
pension on an aid and attendance basis.
II. Housebound
In the case of a veteran entitled to pension who does not
qualify for increased pension based on need of regular aid
and attendance, an increase in the rate of pension is
authorized where the veteran has certain additional severe
disabilities or is permanently housebound. The requirement
for this increase in pension will be considered to have been
met where, in addition to having a single permanent
disability rated as 100 percent under regular scheduler
evaluation, without resort to unemployability under 38
C.F.R. § 4.17, the veteran:
(1) Has additional disability or disabilities independently
ratable at 60 percent or more, separate and distinct from
the permanent disability rated as 100 percent disabling and
involving different anatomical segments or bodily systems,
or
(2) Is substantially confined as a direct result of his or
her disabilities to his or her dwelling and the immediate
premises or, if institutionalized, to the ward or clinical
area, and it is reasonably certain that the disability or
disabilities and resultant confinement will continue
throughout his or her lifetime. 38 U.S.C.A. §§1502(c),
1521(e) (West 1991); 38 C.F.R. § 3.351(d) (1994).
The Board will now address the issue of entitlement to
special monthly pension on account of being housebound. An
August 1993 rating decision shows that the appellant's
disabilities include: cerebrovascular accident (CVA),
evaluated as 100 percent disabling under Code 8009;
noninsulin dependent diabetes mellitus, evaluated as 10
percent disabling under Code 7913, scoliosis of the dorsal
spine, evaluated as noncompensably disabling under Code
5291; and sinusitis and residuals of a fractured jaw, both
evaluated as non-compensably disabling under Code 6599. His
combined nonservice-connected disability evaluation is 100
percent.
Under Code 8009, vascular conditions such as embolism or
thrombosis of vessels of the brain or hemorrhage from the
brain vessels are rated at 100 percent for six months.
Thereafter, the evaluation is base on residuals, with 10
percent being the minimum schedular evaluation. The CVA was
shown on recent examination to be old and to result
primarily in some weakness of the right upper extremity.
For purposes of entitlement to the housebound rate, the
right upper extremity weakness would not be an independent
separately ratable disability, but merely a residual of the
original CVA. As the CVA is rated as 100 percent disabling
currently, the Board must look to the other disabilities to
find one or more ratable at 60 percent. With respect to the
claimed hypertensive cardiovascular disease, the Board notes
that this was not diagnosed when the veteran was examined in
August 1993 and is not shown by the overall clinical
findings. The veteran's blood pressure was normal, and he
had shortness of breath only on heavy exertion; heart
palpations were only intermittent. Significant functional
impairment was not shown.
Under Code 7913, diabetes mellitus is rated as 10 percent
disabling when it is mild; controlled by a restricted diet,
without insulin and without impairment of health or vigor or
limitation of activity. A 20 percent evaluation is
warranted for moderate diabetes mellitus with moderate
insulin or oral hypoglycemic agent dosage, and restricted
diet without impairment of health or vigor or limitation of
activity. A 40 percent evaluation would require large
insulin dosage with a restricted diet and careful regulation
of activities such as the avoidance of strenuous
occupational and recreational activities. A 60 percent
evaluation requires episodes of ketoacidosis or hypoglycemic
reactions, but with considerable loss of weight and strength
and with mild complications, such as pruritus ani, mild
vascular deficiencies, or beginning diabetic ocular
disturbance. The veteran's current manifestations warrant
only a 10 percent rating in that he has noninsulin dependent
diabetes and his health and activity have not been impaired;
as he is able to exercise three times a week and walk a mile
without assistance.
Scoliosis of the dorsal spine is evaluated under Diagnostic
Code 5291. Under that code, a 10 percent evaluation is
warranted for moderate limitation of motion. On
examination, it was reported that the veteran had scoliosis
of the thoracic spine, secondary to a motor vehicle accident
since 1980. No other clinical findings were shown.
However, a 10 percent evaluation for scoliosis of the dorsal
spine is the maximum allowable under the rating schedule,
and such a rating would not result in a schedular evaluation
warranting a grant of special monthly pension at the
housebound rate.
The veteran's sinusitis and fractured jaw are not shown to
be currently symptomatic or to play a role in the veteran's
overall disability picture.
A prerequisite to a determination that an appellant is
housebound is that he has a single permanent disability
rated at 100 percent disabling. The veteran's
cerebrovascular accident warrants a 100 percent rating.
However, even though a single rated disability is shown as
100 percent disabling, the veteran has not submitted
evidence that would demonstrate that he has an additional
disability or disabilities independently ratable at 60
percent disabling. Furthermore, the VA examination clearly
demonstrates that the veteran is not substantially confined
to his dwelling in that he exercises three times a week, is
able to walk a mile on his own and, visit with friends and
travel outside his dwelling three to four times a week.
Therefore, the Board finds that the veteran is not entitled
to special monthly pension on account of being housebound.
ORDER
Special monthly pension based on the need for regular aid
and attendance or on account of being housebound is denied.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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